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36 University of Queensland Law Journal 355 (2017)


It is axiomatic that all power requires justification, and that is equally true for judicial power as for other species thereof. This article is primarily concerned with judicial power in the UK. The subject will be approached through consideration of the Judicial Power Project, which has been critical of the courts, much of this being sharp-edged, and fierce. There is repeated talk of judicial overreach and consequent legitimacy crisis, as the courts are said to encroach on terrain that is properly the preserve of the political branch of government.

It is by the same token important that the critics are properly scrutinized. This is a fortiori so the more far-reaching the critique, especially when the project has a ‘political dimension’, informing governmental views about judicial power. The article begins by setting out the principal argument of the Judicial Power Project, henceforth JPP. It then assesses the JPP’s claims from four perspectives: individual cases, judicial review doctrine, judicial practice and the theory of adjudication.

I should at the outset clarify my own position: academics should critically assess all exercise of power, including judicial power and have always done so; courts should show respect for other branches of government on constitutional, epistemic and institutional grounds, and in general terms have done so. I do not believe that the JPP’s claims are supported by evidence flowing from the positive law, and they rest on normative assumptions concerning the limits of what common law courts should be able to do that are highly contestable.

It should be acknowledged that the JPP site accepts responses that take a contrary view to publications it has posted. It is open, and this is to be commended. While there are responses to particular papers, there has, to my knowledge, not been a more general assessment of the project, and the evidence on which it rests. That is the objective of the present article.